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JAN 11 1999
PATRICK FISHER
Clerk
v.
GEORGE GINES,
Defendant-Appellant,
and
MARY G. TARLIP,
Defendant.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal.
filed before the enactment of the Antiterrorism and Effective Death Penalty Act
of 1996, he need not obtain a certificate of appealability.
Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997),
(1998).
Appellant entered a plea of guilty to the charge of manufacturing 100 grams
or more of methamphetamine within 1000 feet of a public school, in violation of
21 U.S.C. 841(a)(1) and 845 and 18 U.S.C. 2. He was sentenced to 253
months imprisonment to be followed by ten years supervised release. We
affirmed the judgment on direct appeal.
972, 976 (10th Cir. 1992). Appellant argues in this appeal that the district court
erred: (1) in sentencing him under federal rather than state law because the crime
was not committed in a place subject to federal jurisdiction; (2) in sentencing him
Defendant Mary G. Tarlip is not a proper party to this appeal as she did not
sign the notice of appeal and claims she has never been married to George Gines.
See Fed. R. App. P. 3(c)(2); 10th Cir. R. 3.1.
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at **2 (10th Cir. Mar. 9, 1994) (order and judgment). Further, the Food, Drug
and Cosmetics Act of Title 21, United States Code, does not preclude appellants
prosecution for manufacturing methamphetamine under the Comprehensive Drug
Abuse Prevention and Control Act of Title 21, United States Code.
See United
States v. Coyote , 963 F.2d 1328, 1330 (10th Cir. 1992). Finally, although
appellants claims for money damages would be cognizable in a
Bivens action, 2
they necessarily fail because he has not demonstrated the invalidity of his federal
sentence. See Heck v. Humphrey , 512 U.S. 477, 486-87 (1994);
Crow v. Penry ,
See Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics
403 U.S. 388 (1971).
2
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James E. Barrett
Senior Circuit Judge
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